The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174

One of the issues considered by the Appellate Division in this action concerned the timeliness of the challenge to the administrative decision made by the New York State Department of Civil Service [Department], which provided the court with an opportunity to review the question of the triggering of the running of the statute of limitations in terms of the timeliness of challenging an administrative agency’s “final decision.”

The court said that the parties had agree that for the purposes of  prosecuting this combined CPLR Article 78 proceeding and action for declaratory judgment, the four-month statute of limitations set forth in CPLR §217(1) controlled. In addressing this issue the Appellate Division explained:

1. Both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner."

2. Such determination, in turn, "becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies, whereby:

a.       The agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party." and

 b.      In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party.

A May 15, 2012 policy memorandum promulgated by the Department that “redefined the class of employees” eligible to participate in “health insurance buyout programs” offered by the New York State Health Insurance Program [NYSHIP] participating agencies stated that the policy was "effective immediately." While the May 15, 2012 memorandum contained a "grandfather clause" that, in effect, afforded a limited grace period to certain participating agencies with an existing buyout program in place, the Appellate Division said that “the presence of such clause did not render the decision of the Department of Civil Service as to employee eligibility any less final” nor did it render the injury allegedly suffered by individuals subject to its provisions any less concrete.

The Appellate Division concluded that the policy memorandum constituted a "definitive position" on the issue of buyout program eligibility which the Department could not be "significantly ameliorated by further administrative action."

As to the actual date upon which the four-month statute of limitations commenced to run, the court agreed with the Department that the "readily ascertainable" requirement is styled as a constructive notice standard, there by obviating the need for an actual delivery of an “in-hand notice” of the underlying determination to individuals affected by the change.

The Department described its procedure in disseminating its May 15, 2012 policy memorandum as including mailing copies of the policy to the chief executive officers of all NYSHIP participating agencies, as well as to any individual who had requested a copy via the participating agency; posting the memorandum on a website for health benefit administrators and discussing the memorandum at the participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the Appellate Division, it was of the view that a petitioners' claims accrued, and the statute of limitations began to run, upon the effective date of the policy memorandum -- May 15, 2012.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2015/2015_00676.htm

The five most read New York Public Personnel Law postings as of June 12, 2015

The five most read New York Public Personnel Law postings as of June 12, 2015

Click on the "URL" highlighted in color to access the posting

Essentials of the "PickeringBalancing Test”

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The legal distinction between domicile and residence

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

http://publicpersonnellaw.blogspot.com/2012/02/employees-inability-to-provide.html

 

Two different complaints; two different forums

http://publicpersonnellaw.blogspot.com/2011/12/two-different-complaints-two-different.html

Total number of NYPPL pageviews as of June 12, 2015: 1,000,269 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 13, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 13, 2015

Click on text highlighted in color  to access the full report

Employee paid for the same "work time" claimed in two different school districts

A Buffalo City School District technician was sentenced June 11, 2015 for claiming simultaneous work hours at two public school districts, according to an audit [see http://www.osc.state.ny.us/localgov/audits/schools/2015/buffalo.pdf] and investigation released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061115.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061115release

Comptroller released municipal audits for the following political subdivisions of the State:

Dunham Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/dunham.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Berlin

http://www.osc.state.ny.us/localgov/audits/towns/2015/berlin.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Galen

http://www.osc.state.ny.us/localgov/audits/towns/2015/galen.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Huron

http://www.osc.state.ny.us/localgov/audits/towns/2015/huron.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Inlet

http://www.osc.state.ny.us/localgov/audits/towns/2015/inlet.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Village of Johnson City

http://www.osc.state.ny.us/localgov/audits/villages/2015/johnsoncityjc.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Lake Ronkonkoma Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/lakeronkonkoma.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Louisville

http://www.osc.state.ny.us/localgov/audits/towns/2015/louisville.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Princetown

http://www.osc.state.ny.us/localgov/audits/towns/2015/princetown.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

and the

Town of Virgil

http://www.osc.state.ny.us/localgov/audits/towns/2015/virgil.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Finger Lakes Group Home overpaid for food and supplies

The State’s Office for People with Developmental Disabilities’ Finger Lakes Developmental Disabilities Service Office (DDSO) skirted state procurement laws for more than 1,400 purchases worth more than $1 million, gave one vendor an unfair advantage in obtaining the state’s business and overpaid for hundreds of household items, according to an [see http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20150612.pdf] released June 12, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061215.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061215release

NYC projects $3 billion surplus for 2015

New York City is projecting a surplus of $3 billion for fiscal year (FY) 2015 and a balanced budget for FY 2016 with relatively small gaps in the following three years, according to a review [see http://www.osc.state.ny.us/osdc/rpt1-2016.pdf] of the city’s updated financial plan released June 8, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/060815b.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=060815brelease

OATH pre-hearing discovery procedures

OATH pre-hearing discovery procedures

OATH Index No. 853/15.

In proceedings at OATH, some parties engage in informal discovery, although OATH rules of practice provide broad guidelines for discovery practices.

When a party fails to respond to discovery demands, the opposing party should make a pre-trial motion to compel production to the trial judge as soon as possible. Conversely, an objection to discovery should also be made as soon as possible.

Here, petitioner sought to exclude evidence offered by respondent as a sanction for respondent's failure to timely produce documents in response to reciprocal discovery. Administrative Law Judge Tynia D. Richard found respondent’s production inadequate but declined to impose a sanction because she did not find evidence that the non-compliance was willful. However, counsel was warned that similar conduct could result in sanctions in the future.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-853.pdf

Filing disciplinary charges against an individual is a condition precedent for a demand to an administrative disciplinary hearing

Filing disciplinary charges against an individual is a condition precedent to a demand for an administrative disciplinary hearing

2015 NY Slip Op 00587, Appellate Division, Third Department

Following an investigation, New York State’s Division of Human Rights [SDHR] issued a determination of no probable cause to believe that the employer, a school district [District] had engaged in unlawful discriminatory practices with respect to the compliant filed with it by a former District employee [Complainant]. Complainant challenged SDHR’s determination.

Supreme Court dismissed Complainant’s Article 78 petition; the Appellate Division sustained the Supreme Court’s ruling.

One of the issues considered by the Appellate Division was Complainant’s argument concerning her request for a disciplinary hearing pursuant to Education Law §3020-a.

While the Appellate Division said that this issue was “unpreserved because she did not raise it before SDHR or Supreme Court,” it observed that Complainant’s argument “lacks merit because the [District] never filed formal disciplinary charges against her.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00587.htm

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

USCA, Second Circuit, Docket #14-877

The Federal District Court dismissed an ERISA action brought by a pension plan participant seeking a pension on the basis of permanent disability. The applicant had challenged the Pension Plan Fund’s [Fund] reliance on a determination made by the Social Security Administration [SSA] as to his eligibility for disability pension benefits available to enrollees in the Plan.

The U.S. Circuit Court of Appeals affirmed the District Court’s ruling, explaining that the terms of the pension plan at issue gave the Fund discretion to determine an applicant's eligibility for benefits under the plan and the Fund reliance on the Social Security Administration’s determinations with respect to applicant’s disability and eligibility for disability retirement benefits in accordance with the Plan’s policies and procedures was neither arbitrary nor capricious.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/doc/14-877_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/hilite/

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination
Costco Wholesale Corp. v New York State Div. of Human Rights, 2015 NY Slip Op 04587, Appellate Division, First Department

The New York State Division of Human Rights [Division], after a hearing, found that Costco Wholesale Corporation [Costco] had violated the State Human Rights Law (Executive Law §296) when it included certain questions on its electronic application form for employment and ordered Costco to pay $40,000 in civil fines and penalties.

Costco appealed and the Appellate Division unanimously annulled the Division’s determination and the fine and penalties that it had imposed on Costco.

The Appellate Division said that the Division’s determination that Costco had violated Executive Law §296(15) and Article 23-A of the Corrections Law is not supported by substantial evidence as the evidence in the record did not show that Costco’s online employment application system automatically disqualified applicants with a prior criminal conviction.

The court said that the evidence showed that questions that could lead to an applicant’s “automatic” disqualification concerned the applicant’s “legal documentation to work in the United States,” his or her willingness to undergo a criminal background check and employment reference check, his or her willingness to submit to a drug test, whether the applicant states the he or she is able to perform the essential functions of the job, and whether the applicant is 18 years of age or older.

As to an applicant’s response to a question concerning his or her “prior conviction,” the Appellate Division commented that the question was specifically “not an automatic bar to employment, as stated in the application itself.“ The Appellate Division said that the fact that the complainant's application was designated as "pre-screened" indicating that it had passed through the online portion of the hiring process and “was not marked ineligible.”

Nor, said the court, was there any evidence that Costco’s grading criteria for applicants with convictions was used in connection with the online application. Instead, noted the Appellate Division, the evidence showed that this non-mandatory guideline was used only when an applicant had reached the background check stage of the hiring process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04587.htm

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

2015 NY Slip Op 04356, Appellate Division, Third Department

Department of Taxation and Finance [Department] undertook a department-wide audit to identify employees who had overstated their job-related expense deductions on their personal income tax returns. As a result a number of employees [Petitioners] serving in the Department's Criminal Investigation Division, were issued notices advising them to — in accordance with the provisions of their union contract — submit to an official interrogation in order to determine whether disciplinary action was warranted.

Petitioners objected to the interrogation and filed a Freedom of Information Law [FOIL] request seeking "any and all documents, records, memoranda and files . . ., which relate, concern, were precipitated by, or respond to, directly or indirectly, to the . . . proposed interrogation of [Petitioners]."

The Department’s records access officer produced various documents but denied access to, among other things, 68 pages of documents containing proposed interrogation questions — citing the “law enforcement exemption” as justification for withholding those documents. Ultimately Petitioners initiated a CPLR Article 78 proceeding seeking disclosure of the remaining withheld documents. Following an in camera inspection, Supreme Court concluded that the 68 pages of proposed questions did not fall with the “law enforcement exemption” and ordered the release of those pages.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that “Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)," citing Williamson v Fischer, 116 AD3d 1169, leave to appeal denied, 24 NY3d 904.

The court said that "[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access." In denying access to the 68 pages of proposed interrogation questions, the Department “relied exclusively upon Public Officers Law §87(2) (e) (iv), which exempts from disclosure "records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The statute’s references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution. As the records before the Appellate Division “makes no reference to a criminal investigation implicating [Petitioners}, nor does it suggest that state or local law enforcement officials would be involved in the proposed interrogation of them, the court found that the law enforcement exemption embodied in Public Officers Law §87 (2) (e) (iv) was inapplicable to the documents at issue .

Observing that the Department sought to question Petitioners in accordance with the provisions of their union contract for the purpose of gathering information that, in turn, potentially could result in the commencement of administrative disciplinary proceedings, the Appellate Division concluded that the Department’s reliance on the “law enforcement exemption” was misplaced. Further, the Appellate Division said that it was satisfied that “even assuming this exemption otherwise applied here, the questions at issue were routine in nature — the disclosure of which would not reveal detailed or specialized investigative techniques or procedures.”

The court noted two additional grounds advanced by the Department for denying disclosure of the proposed interrogation questions – the exemption of [1] the disclosure of records that "interfere with law enforcement investigations or judicial proceedings,” and the exemption of [2] pre-decisional, inter-agency or intra-agency materials from disclosure. For a number of procedural reasons set out in the opinion, the Appellate Division declined to consider these arguments

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04356.htm

Regular monthly meeting of the State Civil Service Commission for June 2015 scheduled

PUBLIC NOTICE

Department of Civil Service

PURSUANT to the Open Meetings Law, the New York State Civil Service Commission hereby gives public notice of the following:

Please take notice that the regular monthly meeting of the State Civil Service Commission for June 2015 will be conducted on June 16 and June 18 commencing at 10:00 a.m. This meeting will be conducted at NYS Media Services Center, Suite 146, South Concourse, Empire State Plaza, Albany, NY.

For further information, contact:

Office of Commission Operations,

Department of Civil Service,

Empire State Plaza, Agency Bldg. 1,

Albany, NY 12239 
 (518) 473-6598

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York,125 AD3d 475

In this action the Appellate Division considered the viability of grieving an alleged violation of a claimed “past-practice” in the event the subject of the alleged past-practice is reflected in the terms and conditions of the collective bargaining agreement.

Supreme Court had granted the Detectives' Endowment Association’s [Association], petition to annul a determination of New York City Board of Collective Bargaining [Board] denying the Association’s demand for the arbitration of a grievance based on an alleged departed from a past practice related to salaries paid to detectives. Supreme Court annulled the Board’s decision and directed the parties to proceed to arbitration of the grievance.

The Board appealed and the Appellate Division reversed the lower court’s ruling.

The Board had found that the Association’s grievance was not arbitrable due to the lack of a reasonable relationship between the relevant provisions of the collective bargaining agreements and the claim that the New York City Police Department improperly departed from its past practice by paying salaries to detectives that were lower than those paid to officers.

The Appellate Division held that the Board “had a rational basis and was not arbitrary and capricious, citing NYC Dept. of Sanitation v MacDonald, 87 NY2d 650.

Although the Association had argued that its grievance alleged an "inequitable application" of the parties' contracts, thereby satisfying the contractual definition of an arbitrable grievance," the Appellate Division rejected that Association's argument concerning the relationship between the alleged past practice and the relevant provisions in the collective bargaining agreement. 

The court explained that Association’s contention that the contractually provided salary schedule improperly departed from the alleged past practice was not "relevant to the parties' contractual rights and responsibilities" in the absence of any contractual provision requiring or preserving the continuation of past practices as to salaries, citing Chenango Forks CSD v NYS  Public Employment Relations Board, 21 NY2d 255.

Further, said the court, the Association made no claim that the alleged past practice would have been relevant to any other contractual issue, such as the interpretation of an ambiguous provision.”

* The Appellate Division noted that the collective bargaining agreement included an "inequitable application" provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01183.htm

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable
Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, Appellate Division, Third Department

In March 2010 the Green County Civil Service Commission (Commission) adopted a resolution amending its rule governing the probationary term required of new employees to provided that the probationary term shall be a minimum of  8 weeks to a maximum of  52 weeks rather than from a minimum of 8 weeks to a maximum of 26 weeks. The Commission's resolution was approved by the State Civil Service Commission in February 2011.*

In February 2012, Green County (County) and Green County CSEA Unit 7000, Local 820 [CSEA], executed a collective bargaining agreement (CBA) pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law.". The CBA, in pertinent part, provided that "[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment."**

Subsequently CSEA filed a grievance contending that the County had violated the CBA by requiring unit members to serve a probationary period in excess of the 26 weeks on unit members. In response to the Greene County Administrator’s denial of the grievance on the grounds that the Civil Service Probationary Rules for Greene Countycontrolled. CSEA filed a demand for arbitration. The County then filed a petition pursuant to CPLR 7503 seeking to stay arbitration; CSEA cross-moved to compel arbitration.

Supreme Court granted the County's application and denied CSEA's cross application. CSEA appealed the court’s ruling.

Citing Chautauqua County v CSEA Local 1000, 8 NY3d 513, the Appellate Division said that "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act."

The Appellate Division then noted that "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service that rule has the effect of law … the public employer and the union cannot negotiate a contrary provision in a CBA.”

The court however, concluded that the provision in the COB did not offend the Commission’s rules, explaining that:

1. The CBA executed by the County and the Union long after the Commission modified the probationary term; and

2. The provision in the CBA “is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission.”

As to the first test -- was there a statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said that it discerned “no statutory or public policy bar to arbitration of the grievance in the first instance.”

As to the second test – did the parties actually agreed to arbitrate this particular dispute – the court said that the relevant CBA “contains a broad arbitration clause, which encompasses ‘any claimed violation, misrepresentation or improper application’ of the CBA.” The inclusion of such language, said the Appellate Division, “persuaded [it] that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration.”

The Appellate Division reversed the Supreme Court's order, denying the County's application to stay arbitration and granting the Union's cross application to compel arbitration.

* Civil Service Law §20.2 provides, in pertinent part, that “The rules and any modifications thereof adopted by a county civil service commission or county personnel officer or by a regional civil service commission or regional personnel officer shall be valid and take effect only upon approval of the state civil service commission.”

** This provision in the collective bargaining agreement may prove to be a demonstration of the Doctrine of Unintended Consequences. The CBA language cited in the Appellate Division's opinion provides that a new employee "shall be on probation for a period of twenty-six (26) weeks from the date of appointment." Reading this language narrowly, it could be argued that the minimum period of probation is identical to the maximum period of probation. This would result in the individual having attained "instant tenure" in the position in view of the fact that case law provides that a probationary employee is entitled to "notice and hearing" in the event the appointing authority wishes to terminate the individual during his or her minimum period of probation [see McKee v. Jackson, 152 AD2d 54]. In contrast, a probationary employee may be removed from the position without notice and hearing after completing his or her minimum period of probation and prior to the completion of  his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04709.htm

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The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________

 

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute
2015 NY Slip Op 04712, Appellate Division, Third Department

The Civil Service Law §75 hearing officer found the employee [Employee] guilty of two of the three charges of alleged misconduct and recommended that the penalty of termination be imposed. The appointing authority adopted the findings and recommendation of the hearing officer and terminated Employee.

Employee then appealed the appointing authority’s determination to the New York State Civil Service Commission as authorized by Civil Service Law §76(1).* The Commission sustained the appointing authority’s decision and Employee then sought judicial review of the Commission’s decision alleging,  among other things, that “the disciplinary proceedings were untimely." Supreme Court transferred Employee's appeal to the Appellate Division.**

The Commission argued that its determination was not subject to judicial review, citing Civil Service Law §76(3). §76(3), said the Commission, provides that where, as here, an employee has elected to appeal an adverse disciplinary decision by the appointing authority to a State or local civil service commission, "[t]he decision of [the commission] shall be final and conclusive, and not subject to further review in any court."

The Appellate Division, conceding that “Such explicit statutory language” ordinarily bars further appellate review, said it could review the Commission’s ruling as such a “statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance,” citing Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542 and Baer v Nyquist, 34 NY2d 291. The court explained that “even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or ‘when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction.’"

In this instance Employee, presumably a state employee serving in a position designated managerial or confidential pursuant to Article 14 of the Civil Service Law, the Taylor Law, asserted that the Commission acted in excess of its statutory authority, and thus, its jurisdiction, by sustaining disciplining action taken against her by the appointing authority for conduct that occurred more than one year before the disciplinary proceeding was commenced against her. Such action, argued Employee, was, in violation of the limitations period legislatively established by Civil Service Law §75(4).

The Appellate Division, observing that “[T]he courts have the power and the duty to make certain that [an] administrative official has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature," said that it was persuaded that, in view of the circumstances presented here, "this Court must review the determination to the limited extent of determining whether Commission  acted in excess of its authority by disciplining petitioner for time-barred charges."

The court indicated that the relevant provision in the Civil Service Law barred disciplinary action based on alleged misconduct unless it was commenced within "one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges," provided, however, the charges of alleged misconduct are subject to an exception provided within the statute, which states that the limitation period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Commission contended that this statutory exception properly applies in Employee’s situation as she had been charged with conduct which constitutes the crime of official misconduct. Official misconduct is committed "when, with intent to obtain a benefit or deprive another person of a benefit . . . [a public servant] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized" (Penal Law §195.00 [1]).

The Appellate Division said that the relevant charges brought against Employee “fail to allege that [Employee] acted with the intent to gain a benefit or that she knew that her conduct was unauthorized; both of these mens rea [criminal intent] requirements are essential elements of the crime of official misconduct.” Further, said the court, in determining whether the statutory exception applies only the allegations of misconduct complained of and described in the charges and specifications are considered and the court may not consider any evidentiary proof submitted during later proceedings.

The court then rejected the Commissions argument that a general assertion included elsewhere in the notice of discipline that the misconduct described in the charges violated several criminal statutes, including Penal Law §195.00, cured the deficiency. Accordingly, said the court, “the conduct described in the charge[s] would not, if proven in court, constitute a crime," and thus "the statutory exception does not apply, and the charges are untimely."

The Appellate Division ruled that in affirming the discipline imposed upon Employee for time-barred charges the Commission "acted in excess of the grant of authority given [to it] by statute [and] in disregard of the standard prescribed by the legislature." Accordingly, said the court, the Commission's determination "must be annulled," and the disciplinary charges filed against Employee dismissed as untimely.

* Civil Service Law §76(1), in pertinent part, provides that an individual may appeal an adverse disciplinary determination “either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of Article seventy-eight of the civil practice law and rules.”

** See CPLR §7504 [g].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04712.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________